BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION HARRISBURG, PA ) ) ) ) ) ) COMMENTS OF CROWN CASTLE

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1 BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION HARRISBURG, PA In the Matter of Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania ) ) ) ) ) ) Docket No. M COMMENTS OF CROWN CASTLE Pursuant to the Commission s February 23, 2016 Order (the Order ) in the abovecaptioned proceeding, Crown Castle NG East LLC and Pennsylvania CLEC LLC (jointly Crown Castle ) 1 submit these comments addressing the issues raised by the Commission regarding companies providing telecommunications services via distributed antenna systems ( DAS ). As discussed in detail below, the Commission has correctly held for over ten years that companies that provide telecommunications services via DAS networks, such as Crown Castle, are public utilities under Pennsylvania law that appropriately merit Certificates of Public Convenience ( CPC ), just like other Pennsylvania telecommunications providers. The Commission should continue its historic course, which has promoted the deployment of competitive service and technologies. 1 Crown Castle NG East LLC was originally granted a CPC in 2005 in the name NextG Networks of NY, Inc. The company subsequently changed its name to Crown Castle NG East Inc., and then, in connection with its conversion to a limited liability company, to Crown Castle NG East LLC. Pennsylvania CLEC LLC ( PA-CLEC ) was also granted a CPC in As the result of a merger, Crown Castle NG East LLC and PA CLEC are both wholly-owned subsidiaries of a common parent and both were originally granted CPCs in proceedings the Commission would now appear to classify as DAS cases.

2 I. BACKGROUND REGARDING CROWN CASTLE Crown Castle is one of the country s largest independent owner and operator of shared telecommunications infrastructure, with more than 15,000 DAS and small cell installations, and over 16,000 miles of fiber,. Crown Castle or its affiliates hold CPCs in 46 states, Puerto Rico and the District of Columbia. As the largest builder, owner and operator of DAS networks, Crown Castle is uniquely positioned to comment on the issues raised in the instant proceeding. Crown Castle was granted a CPC as a competitive access provider by the Commission in Today, Crown Castle provides a host of telecommunications services via approximately 5,400 miles of fiber optic lines that it either owns or has rights to use in Pennsylvania and has deployed DAS networks in more than 35 communities in Pennsylvania, with more in active development. Crown Castle provides a host of telecommunications services via its networks in Pennsylvania. As set forth in more detail below, Crown Castle provides a telecommunications service over its DAS networks that is sometimes called RF Transport, by which Crown Castle transports communications for its wireless carrier customers over Crown Castle s fiber optic lines between remote Nodes located on poles in the public rights of way and a central hub location. In addition, portions of Crown Castle s DAS networks are being used to provide a variety of telecommunications services to enterprise, institutional, governmental, educational, and carrier customers. As such, Distributed Antenna Systems, or DAS networks, are an important part of the modern telecommunications marketplace. Providers that deploy and utilize innovative and costeffective DAS networks to provide their services also serve as an additional source of competition to entrenched service providers, to the ultimate benefit of consumers. 2

3 II. WHAT IS A DISTRIBUTED ANTENNA SYSTEM; WHAT SERVICE IS PROVIDED VIA A DISTRIBUTED ANTENNA SYSTEM (ORDER ISSUE #1) As a threshold matter, it is important to clarify that distributed antenna system is a term that describes a network, not a service. A. The Telecommunications Service Provided Via A DAS Network When it provides telecommunications services using its DAS network configurations, Crown Castle s customers are typically providers of retail wireless telecommunications services. Crown Castle s telecommunications service provided over DAS networks consists of providing transport of Crown Castle s customers communications between points designated by the customers without alteration of the content of the communications. As such, Crown Castle is a traditional carrier s carrier. Of course, transporting communications for wireless providers from antenna locations to some other point of presence is not a new concept. Rather, it is a traditional part of the telecommunications marketplace and DAS network configurations mirror those of other traditional services. Moreover, DAS networks are no longer a novel technology; they have been deployed in the U.S. over the last fifteen years. B. There Is No Single Configuration Of A DAS Network Although there is no single combination of equipment that defines a DAS network, typically, a DAS network involves a communication transported by Crown Castle over its network between two locations. On one end are equipment configurations called Nodes that are located on utility, streetlight, or traffic signal poles within the public rights of way. The equipment comprising a typical Node in Crown Castle s DAS network includes: a small, lowpower antenna, laser and amplifier equipment for the conversion of RF signals to optical signals (or from optical to RF), fiber optic lines, and associated equipment (such as power supplies). For those communication signals starting at a Node, Crown Castle transports its customer s 3

4 communications through Crown Castle s fiber optic network to a distant point that is typically, but not always, an aggregation point called a Hub. The Hub is a central location that contains such equipment as routers, switches, and signal conversion equipment. The Hub is typically installed in a building located on private property. In the case of communications starting at the Node, Crown Castle hands the communication signal back to its customer at the Hub, where the communications signal may be, for example, interconnected with the public telephone network. Crown Castle also transports signals for its customers from the Hub out to Nodes, and in that case the process simply goes in the reverse direction. Although its DAS networks incorporate antennas, Crown Castle does not provide any wireless services. It does not have any relationship with or provide any service to retail end users or any other user of wireless services. All radio transmissions and wireless services are controlled and provided by Crown Castle s carrier customers through the carrier customer s equipment. The same is true in both directions of communication: Crown Castle does not provide or control radio transmissions between the Node and a carrier customer s subscriber s mobile device. Any radio communication is generated and controlled entirely by the wireless carrier through its own equipment. C. Crown Castle Provides Many Telecommunications Services It is also critical for the Commission to recognize that companies, such as Crown Castle, that may provide service via a DAS network are not limited to providing the transport service to wireless carriers that the Commission apparently thinks of as DAS service. A DAS provider s telecommunications service is not limited to service between Nodes and Hubs. It may also provide telecommunications service between other customer locations. Furthermore, a so-called DAS provider may feature DAS technology as just one component among other 4

5 types of telecommunications services. Indeed, the fiber used to provide DAS is also used for other purposes, as the providers various services, networks and facilities are integrated. This is particularly true for Crown Castle. In Pennsylvania alone, Crown Castle utilizes approximately 5,400 miles of fiber optic lines over which it offers a variety of telecommunications services in addition to the RF transmission service offered via DAS configurations. Indeed, Crown Castle uses the fiber optic lines that were originally installed as part of a DAS network to provide other telecommunications services to enterprise customers, governments, schools, and institutions. III. CROWN CASTLE IS A PUBLIC UTILITY UNDER PENNSYLVANIA LAW THAT MUST BE CERTIFICATED BY THE COMMISSION (ORDER ISSUES #2-3) A. Crown Castle Is Within The Definition Of Public Utility It is clear that so-called DAS providers, such as Crown Castle, meet the definition of a public utility under Section 102(1)(vi) of the Commonwealth s Public Utility Code. Under Section 102(1)(vi), a Public utility is any company owning or operating in this Commonwealth equipment or facilities for (vi) Conveying or transmitting messages or communications. 2 The statute s definition is very broad and encompassing, and clearly contemplates Crown Castle and the services provisioned on Crown Castle s networks. Crown Castle owns and operates equipment and facilities in Pennsylvania, and Crown Castle s equipment and facilities transmit messages for the company s customers. Specifically, in a DAS network situation, as described above, Crown Castle transports telecommunications traffic from various Nodes to the DAS provider s Hub, and vice versa. Accordingly, Crown Castle falls within the definition of a public utility Pa. Cons. Stat. 102(1)(vi). 5

6 B. Crown Castle Does Not Provide Mobile Domestic Cellular Radio Service It is equally clear that Crown Castle is not excluded from the definition of public utility as a result of the exception found at Section 102(2)(iv). That section excludes from the definition of public utility a company that furnishes mobile domestic cellular radio telecommunications service. 3 Mobile domestic cellular radio telecommunications service is not defined, but in the Order, the Commission suggests that the term appears to refer to commercial mobile radio service ( CMRS ). 4 Like mobile domestic cellular radio telecommunications service, CMRS is not defined by Pennsylvania statutes or regulations, but it is defined by federal law. The federal Communications Act defines the term commercial mobile service as any mobile service (as defined in section 153 of this title) that is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of the public, as specified by regulation by the commission. 5 In the federal regulations, or the FCC Rules, the term commercial mobile radio service is defined similarly as a mobile service that is: (a)(1) provided for profit, i.e., with the intent of receiving compensation or monetary gain; (2) An interconnected service; and (3) Available to the public, or to such 3 66 Pa. Cons. Stat. 102(2)(iv). Notably, this exception is not included in the Commission s rules defining a public utility. 52 Pa. Code 63.1 ( Public utility A person or corporation owning or operating equipment or facilities in this Commonwealth for conveying or transmitting messages or communications over the telecommunications network for the public for compensation. The term does not include either a person or corporation not otherwise a public utility who or which furnishes service only to himself or itself or a bona fide cooperative association which furnishes services only to its stockholders or members on a nonprofit basis. ) 4 Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania, Order, Docket No. M (Order entered Mar. 5, 2016) at n.4 ( DAS Review Order ) U.S.C. 332(d)(1) (emphasis added). 6

7 classes of eligible users as to be effectively available to a substantial portion of the public; or (b) The functional equivalent of such a mobile service described in paragraph (a) of this section. 6 Thus, to be considered CMRS under federal law, a service must be, at the very least, a mobile service. It must also be provided for profit, an interconnected service, and available to the public, or it must be the functional equivalent of a mobile service that has those characteristics. Crown Castle is not excluded from the definition of public utility under Pennsylvania law, because it does not provide a mobile service. The federal Communications Act and the FCC s Rules define mobile service as a radio communication service carried on between mobile stations or receivers and land stations, and by mobile stations communicating among themselves. 7 Both versions of the definition go on to list various characteristics that the mobile service must include, but the keys to the definition are the terms radio communication service and mobile stations. Under the federal Communications Act, radio communication means the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding and delivery of communications) incidental to such transmission. 8 Crown Castle s service does not meet this definition because Crown Castle does not transmit writing, signs, signals, pictures or sounds by radio. As described above, Crown Castle transports its carrier-customers signals via fiber optic line. 9 Once Crown Castle has transported a communication over its fiber optic 6 47 C.F.R (emphasis added) U.S.C. 153(33); 47 C.F.R (emphasis added) U.S.C. 153(40) (emphasis added). 9 There is also a de minimis portion of this transport accomplished via coaxial cable between the fiber optic lines and the antenna on the pole. 7

8 facilities to the antenna at the Node, or to the Hub in the other direction, the communication is converted back to an RF signal, and the carrier customer controls and provides the transmission by radio to the end-user consumer s mobile device. All RF transmissions and wireless services are controlled and provided by the wireless carrier customers not Crown Castle. Crown Castle does not control any radios in its service or facilities. Furthermore, Crown Castle s mere ownership and physical maintenance of antennae capable of transmitting radio communications as part of its DAS network, which have no radio transmission until a third party provides them, does not satisfy the definition of radio communication. Without the radio frequency signal, which is generated and controlled by Crown Castle s wireless carrier customers, the antennae are no more capable of providing service than they would be boxed up in a warehouse. As the definition states, to be a provider of radio communication requires, at minimum, the transmission by radio of content. Crown Castle s service and DAS network also are not incidental to the transmission of radio communications by Crown Castle s carrier-customers. The federal Communications Act explicitly differentiates between wire communication and radio communication. 47 U.S.C. 153(33) & (52). In U.S. v. Norris, 88 F.3d 462 (7th Cir. 1996), the Seventh Circuit Court of Appeals addressed a similar situation and held that the wireline service does not become incidental to the wireless service. In Norris, the court was required to address whether cable television service was a wire communication or a radio communication. The government argued first that because wire transmissions are technically radio waves (electrical energy with a wavelength in the radio wave band of the electromagnetic spectrum) delivered through the conduit of a conducting cable, all wire communications (except, perhaps, fiber optic 8

9 transmissions) are included within the definition of communication by radio. Id. at The court rejected that argument, holding that it impermissibly conflates the definitions of wire and radio communications under Title 47 definitions which for over eighty years Congress has treated as distinct and mutually exclusive. Id. The government in Norris also argued that cable television services were radio communication because cable operators receive over-the-air radio broadcasts and then transport them across the cable system to subscribers on the other end of the line. The government argued that the cable system was therefore incidental to the original television broadcasters radio service. Id. The court also rejected this argument by the government, holding that it unacceptably blurs the line between radio and wire communications. Id. In TKR Cable Co. v. Cable City Corp., 267 F.3d 196, (3d Cir. 2001), the Third Circuit followed the Norris decision in rejecting the argument that merely because cable operators retransmit across wires what were originally radio transmissions they are incidental to the radio communications. Looking to the definitions of wire and radio communications, the TKR Cable court first opined that Congress clearly defined wire and radio communications as concepts involving distinct types of transmissions. Id. at 201 (citing 47 U.S.C. 153(33) & (52)). The court then expanded on the Norris decision, explaining that [t]he wires that connect a home satellite dish to the living room television arguably constitute facilities incidental to the transmission. Id. at 202. However, the court concluded that the entire cable transmission infrastructure of a city or suburban area, a structure that provides a foundation for a significant business, such as that of TKR, or any other major cable service provider, cannot be considered a mere instrumentality to transmission. Id. 10 Of course in this case Crown Castle s transmissions are almost exclusively over fiber optic lines, with only small pieces of coaxial cable on the pole. 9

10 Crown Castle s service and facilities fall squarely within the analysis in TKR Cable and Norris. Congress explicitly differentiated between wire and radio communications. Crown Castle s service is never transmitted across the open airwaves, but rather, they are transmitted over a closed wired network that constitutes a wired service under the Act. 11 Crown Castle s thousands of miles of fiber optic lines create a network that Crown Castle uses to transport the signals of multiple customers. Crown Castle s fiber optic lines are not the equivalent of a few feet of wires bringing a satellite signal off a resident s roof to the television inside the house. The fact is that in order to complete a wireless call, the call is transported over wireline networks, perhaps even wireline networks owned and operated by multiple different companies. All of those wired services are not converted to radio communication simply because they carry traffic for wireless service providers. In addition, not only does Crown Castle not provide radio communication service, but Crown Castle s service is also not carried on between mobile stations. To qualify as a mobile service the service must be carried on between mobile stations or receivers and land stations, and by mobile stations communicating among themselves. 12 While a DAS network provides service that may terminate at facilities that may be land stations (i.e. the Node), Crown Castle does not provide service between those land stations and mobile stations or receivers, or between mobile stations communicating among themselves. A mobile station is defined by the federal Communications Act as a radio-communication station capable of being moved and which U.S.C. 153(52) ( The term wire communication or communication by wire means the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission. ) U.S.C. 153(33); 47 C.F.R

11 ordinarily does move. 13 The statutory definition of mobile station thus, has two prongs: (1) it is capable of being moved; and (2) it ordinarily does move. Crown Castle does not provide service to or via mobile stations. As explained above, Crown Castle provides transport service over fiber optic lines between stationary hubs and stationary nodes. Crown Castle does not provide a service between the Node and any consumer s mobile device. Moreover, none of the equipment involved in DAS service is capable of being moved or ordinarily does move. Instead, each Node and Hub is limited to a specific location and can only operate at that location. Thus, the equipment used to facilitate Crown Castle s service does not satisfy the definition of mobile station. Because Crown Castle s service provided via DAS networks does not fall within any of these applicable definitions mobile station, radio communication, mobile service, or commercial mobile service / commercial mobile radio service under federal law, it cannot be considered a mobile domestic cellular radio telecommunications service under Pennsylvania law. Accordingly, it does not fall within the exemption to the definition of public utility. C. The Commission s Precedent Is Consistent With National Precedent Granting Certificates To Crown Castle And Similar Companies In many cases over the last ten or more years, the Commission has correctly concluded that Crown Castle and other similar companies are public utilities, meriting the issuance of CPCs. 14 The Commission has also issued certificates to other entities that provide wholesale U.S.C. 153(34). 14 The Commission notes in the Order initiating this proceeding that it recently approved the application of SQF, LLC. See Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania, Docket No. M (Order entered Mar. 5, 2016). See also Application of Gamma Ventures, LLC for Approval to Offer, Render, Furnish or Supply Telecommunication Services as a Competitive Access Provider to the 11

12 telecommunications services that are indistinguishable from those provided by entities using DAS technology. 15 Moreover, even as a so-called DAS provider, Crown Castle also falls into this second category because, as discussed above, Crown Castle also provides other telecommunications services, including traditional backhaul for wireless carriers over networks that do not employ DAS technology. As discussed above, while some providers may only provide service via DAS networks initially, many entities working with DAS technology utilize their facilities for other types of services. In doing so, they very closely resemble other certificated entities that offer private line, backhaul, and related services. The mere fact that the Commission s CPC grants to Crown Castle and similar entities were uncontested does not undermine the validity of the Commission s conclusion. 16 Indeed, in every case, the Commission s expert staff carefully reviewed the applicants proposed services and qualifications. The Commission s prior approvals of CPC applications for these entities (both Public in the Commonwealth of Pennsylvania, Order, Docket No. A (Order entered June 19, 2014); Application of ATC Outdoor DAS, LLC for Approval as a Competitive Access Provider to the Public in the Commonwealth of Pennsylvania, Order, Docket No. A (Order entered Dec. 22, 2008); Application of NextG Networks of NY, Inc d/b/a NextG Networks East, for Approval of the Indirect Transfer of Control of NextG Networks of NY, Inc d/b/a NextG Networks East, Order, Docket No. A (Order entered July 30, 2009); Application of Pennsylvania-CLEC LLC for Approval to Offer, Render, Furnish or Supply Telecommunications Service as a Competitive Access Provider to the Public In the Commonwealth of Pennsylvania, Order, Docket No. A (Oct. 6, 2005). 15 See, e.g., Application of Public Wireless, Inc. for Approval as a Competitive Access Provider, Order, Docket No. A (Order entered Sept. 1, 2009) (granting certification to company providing transport service via fiber backhaul); Application of NTELOS of West Virginia Inc. d/b/a NTELOS for Approval as a Competitive Local Exchange Carrier, Reseller of Interexchange Toll Services, Facilities-based Interexchange Carrier, and Competitive Access Provider, Order, Docket Nos. A ; A ; A ; A ; A ; A (Order entered Mar. 12, 2010) (granting certification to entity that will provide backhaul services to major wire line and wireless carriers including connectivity to cell sites as well as Metro Ethernet, IP Services and High-capacity Private Line Service ). 16 See, e.g., 66 Pa. Cons. Stat. 316 (findings in Commission orders shall remain conclusive upon all parties affected thereby, unless set aside, annulled or modified on judicial review ). 12

13 DAS providers and those with similar facilities, equipment and services) were appropriate, and the Commission should continue to grant such certifications. Moreover, the Commission s orders issuing CPCs to Crown Castle and other similar companies are consistent with the approach of other state utility commissions. Crown Castle has received certificates 17 in 45 other states, Puerto Rico and the District of Columbia. If Crown Castle were a CMRS provider as a result of its provision of telecommunications services over DAS networks, Section 332(c) of the federal Communications Act, 47 U.S.C. 332(c), would preempt all state commissions from issuing those certificates. But those commissions, like this Commission, have all correctly concluded that the provision of telecommunications service over a DAS network does not convert the provider into a CMRS provider. IV. THE IMPACT OF CERTIFICATION FOR ACCESS TO POLES AND RIGHTS OF WAY (ORDER ISSUE #6) Successful deployments by Crown Castle and other providers deploying DAS networks are dependent on access to utility poles and public rights-of-way. That means that such providers must sign agreements with utilities, municipalities, or other pole owners to attach facilities to existing infrastructure. Although federal law grants pole attachment rights to telecommunications service providers which Crown Castle certainly is this may not be obvious to all of the entities with which Crown Castle must negotiate pole access rights. 47 U.S.C Moreover, some pole owners look for any opportunity to avoid allowing access to their poles (and hence the reason for the mandatory right of access in Section 224 of the Communications Act). Thus, pole owners 17 In some states, state law may only require registration or some other form of approval not called a certificate of public convenience. However, in no case is that because the services provided via DAS networks was deemed not to be a telecommunications service. In Pennsylvania, as discussed above, the statute requires that as a provider of telecommunications service, Crown Castle and others like it qualify as a public utility requiring a CPC. 13

14 frequently require proof that the attaching party holds a certification from a governmental authority like this Commission. For example, in one pole attachment agreement that Crown Castle has entered into in Pennsylvania, the preamble requires that the licensee be certificated, franchised, licensed or otherwise governmentally authorized to provide such service(s) within the Commonwealth of Pennsylvania. Another pole owner, in the Pole Attachment Guidelines attached to its pole attachment agreement, requires as a condition for a pole attachment agreement State certificates/licenses. The importance of the CPC in establishing a company s right to obtain pole attachments is emphasized by a case originating in Pennsylvania. In Fibertech v. North Pittsburgh Tel. Co., the pole owner refused access to its poles to Fibertech, even though Fibertech held a CPC from this Commission. 18 The FCC held that Section 224 of the Communications Act defines a telecommunications service provider as someone that offers telecommunications service. 19 The FCC also held that Fibertech met its burden to show that it offers telecommunications service by proving that it held a CPC and that it had filed the requisite tariffs. 20 The FCC opined that this Commission s decision to grant a certification reflect[s] judgments by an expert regulatory agency that the services set forth in Fibertech s Tariff constitute telecommunications services... Such judgments suffice to establish a prima facie case. 21 Furthermore, and more broadly, the FCC held that attachers are entitled to rely on decisions by responsible regulatory agencies, such as... public utility commissions in the case of telecommunications carriers, in 18 Fiber Technologies Networks, LLC v. North Pittsburgh Telephone Company, Memorandum Opinion and Order, File No. EB-05-MD-014, 22 FCC Rcd , 2 (E.B. Feb. 23, 2007). 19 Id. at Id. at Id. at

15 establishing their status as entities entitled to pole access under Section 224(f) of the Act. 22 The case emphasizes that certification can be essential for DAS providers looking to gain access to poles. For access to public rights-of-way, possessing a CPC may be even more critical. Pennsylvania state law quite explicitly grants the right to access the public rights-of-way to public utility corporation[s]. Specifically, 15 Pa. Cons. Stat. 1511(e) states that A public utility corporation shall have the right to enter upon and occupy streets, highways, waters and other public ways and places for one or more of the principal purposes specified in subsection (a) and ancillary purposes reasonably necessary or appropriate for the accomplishment of the principal purposes, including the placement, maintenance and removal of aerial, surface and subsurface public utility facilities thereon or therein. 23 The statute also specifies that such public utility corporation[s] must also obtain such permits as may be required by law and shall comply with the lawful and reasonable regulations of the governmental authority having responsibility for the maintenance thereof. 24 Thus, to get such permits, and to therefore get access to the public rights-of-way, the company must be a public utility corporation. As held in the Fibertech case, because 66 Pa. Cons. Stat requires that a public utility obtain a CPC; certification by the Commission establishes a company s status as a public utility corporation. Indeed, local governments commonly require Crown Castle to present its CPC as a condition of access to the public rights-of-way. For example, the Borough of State College requires by ordinance that permit applications for construction in the rights-of-way must include 22 Id. at Pa. Cons. Stat. 1511(e). The principal purposes specified in subsection (a) include [t]he conveyance or transmission of messages or communications by telephone or telegraph for the public. 15 Pa. Cons. Stat. 1511(a)(6) Pa. Cons. Stat. 1511(e). 15

16 [a] copy of the applicant s use agreement, franchise, license, or other legal authorization or order granting a certificate of authority from the State of Pennsylvania Public Service Commission or other applicable State or Federal agency. 25 And while the City of Lancaster s ordinances do not require Commission certification for an entity to access the public rights-ofway, the city code differentiates between PUC-regulated entities and non-puc-regulated entities. The latter, non-puc-regulated entities, must obtain an additional right-of-way use authorization not required of PUC-regulated entities, and are subject to different remedies and penalties under the code. 26 Even in municipalities that do not require proof of CPC status in their local code, Crown Castle has generally found that local officials will not allow access to the public rights-of-way, or even engage with the company regarding access, if the company does not hold a CPC. The Commission also asks whether customers demand evidence that Crown Castle is authorized to provide service via a CPC. Indeed, they do. Crown Castle has lost business in states where it did not yet have a certificate. The potential customers would not give Crown Castle their business unless and until it had a certificate. Any action as a result of this proceeding that left Crown Castle and others like it without evidence of its public utility authorization, would adversely affect the ability to provide service and deploy competitive, technologically advanced networks. 25 Ch. XVI, Part B1, 220(a)(7), available at s.pdf. 26 See Ch. 263, Right-of-Way Management, available at 16

17 V. FAILURE TO TREAT DAS PROVIDERS LIKE OTHER TELECOMMUNICATIONS PROVIDERS MAY HAVE IMPLICATIONS UNDER FEDERAL LAW (ORDER ISSUE # 4) For years, the Commission has issued CPCs to companies that provide telecommunications service via DAS networks, and to other entities that provide similar telecommunications services. As discussed above, the CPC gives the providers the same rights and advantages for access to public rights-of-way under Pennsylvania law that other competitive telecommunications providers enjoy, which in turn puts DAS providers on the same footing as other entities with which they compete. In this way, the Commission follows state law and its own precedent and also benefits consumers by encouraging innovation and competition. If, however, the Commission were to suddenly reverse course and cease issuing certifications to so-called DAS providers, or worse yet, strip existing certifications from companies, such as Crown Castle, that the Commission deems to be DAS providers, such an action could have significant adverse consequences for those companies, for competition, and for consumers. First, such a move would likely discourage innovation, as a class of telecommunications service providers would lose certification based on the technology chosen to provide their services even services that are functionally the same as those provided by other entities using different technologies. Second, doing so could disrupt the marketplace, as suddenly non-certified DAS providers would likely face new obstacles from pole owners and, especially, local governments regarding public rights-of-way. These obstacles might range from something as innocuous (but resource-and time-consuming) as requests from pole owners or jurisdictions for the provider to justify its rights to attach to poles or occupy the rights-of-way, to fee disputes, to outright loss of 17

18 access. 27 Such disruption could have flow-through effects to the carrier customers of entities, such as Crown Castle, and ultimately to end-user consumers. Finally, as a result, an action by the Commission that effectively strips Crown Castle and other similar companies of the rights and privileges allowed to other telecommunications providers would run afoul of federal law. A declaration that companies that the Commission deems DAS providers are not public utilities would materially inhibit or limit the ability of Crown Castle and others to compete in a fair and balanced regulatory environment, in violation of 47 U.S.C Such an action likely would interfere or outright prevent Crown Castle s ability to deploy in the public rights-of-way, and would also likely interfere with or at a minimum make extremely difficult and costly, Crown Castle s attempt to obtain pole attachments. The Commission should not and cannot grant to a certain set of providers a competitive advantage (for example, in the form of access to public rights-of-way) that it then denies to others. The FCC has repeatedly held that state and local regulatory schemes that favor one set of providers violate Section 253 of the Communications Act. For example, in Public Utility Commission of Texas, 29 the FCC rejected a Texas law that favored ILECs and burdened new entrants, holding that disparity in the treatment of classes of providers violates the requirement 27 Under the terms of one of Crown Castle s pole attachment agreements in Pennsylvania, [a] license to attach to any Licensor Pole granted under this Agreement shall also be deemed terminated for all those Licensor Pole attachments within the Licensee s certificated, franchised, licensed or otherwise governmentally authorized territory that are affected by any of the following: (c) The loss, rescission, or final revocation of any certificate, franchise, license or other governmental authorization to which the Permit applies. 28 See, e.g., TCG New York, Inc. v. City of White Plains, 305 F.3d 67, (2d Cir. 2002) FCC Rcd (1997); Silver Star Telephone Co., Inc., 12 FCC Rcd , (1997), recon. denied, 13 FCC Rcd (1998), aff d, RT Communications, Inc. v. FCC, 201 F.3d 1264, (10 th Cir. 2000). 18

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20 Crown Castle 2000 Corporate Drive Canonsburg, PA (510) Attorneys For Crown Castle April 19,